'Central Park Five' case reinforces reporter's privilege

As the film "The Central Park Five" heads into the Film
Independent Spirit Awards in Los Angeles on Saturday, where it is nominated for
best documentary, its filmmakers can rest assured that at least one contest,
the one that was taking place far from Hollywood in a New York City courtroom,
is over. In a case closely watched by the documentary film and journalism
community, a New York district court judge on Tuesday quashed a subpoena
seeking access to outtakes from the film, saying that the plaintiff had
established entitlement to a reporter's privilege.

The courtroom battle between the documentary's filmmakers--the
prominent documentarian Ken Burns, his daughter Sarah Burns, and David McMahon--and New
York City officials was the latest, unlikely chapter in one of the city's most
notorious crimes. "The Central Park Five," which was released in November, tells
the story of the conviction and eventual exoneration of five men in the
infamous 1989 rape and assault of a jogger in Central Park. The film makes the
case that conviction of the five teenagers on scant evidence and confessions (later
disavowed) was a miscarriage of justice by the legal system and society, both
of which sought quick resolution and to assign blame for an emblematic attack. The
five men, who were cleared of the charges after another inmate confessed to
having committed the crime, have been engaged in a civil dispute with the city
for years, seeking damages for the seven to 13 years they spent in prison.

A subpoena filed in October, amending a broader version
brought a month earlier, sought access to all of the film's unused footage
featuring the five men, their family members, attorneys, and anyone with
knowledge of the case, claiming the content was of use in the civil case. Florentine
Films, the movie's distributor, filed an appeal to quash the subpoena on the
grounds that the filmmakers were entitled to a reporter's privilege under the
New York State Shield Law.

Shield laws, which are on the books in 40 states and frequently
offer only qualified protection, have been
at the center of many journalistic legal struggles in recent years. What
differentiates the "Central Park Five" from many of the latest national
security-related cases is firstly that the material sought did not come from a
confidential source. Sarah Burns acknowledged that the threshold to overcome a
reporter's privilege is much lower when it comes to non-confidential sources
under the New York Shield Law, but that the protection exists nonetheless. While
the subjects of the film did not ask to remain anonymous, they did not "give
the interviews with the understanding that they would be investigative material
in the case for the city," Burns told CPJ. "The city has the opportunity to ask
them those questions when they depose them in the case. We felt that it was an
unnecessary and unfair intrusion into our work to ask for this material," she
added. "It is not our job to be investigators on their behalf." Judge Ronald L.
Ellis agreed, writing in his decision that the city had "failed to overcome the
reporter's privilege by making a showing that the information they seek
pertains to a significant issue and is unavailable from other sources."

But the real distinguishing factor in the "Central Park Five"
case stems from its medium: documentary film. Documentaries have long been
closely related to traditional journalism, with films from "The Thin Blue Line"
to this year's Oscar-nominated "The Invisible War," perfecting the art of the
cinematic exposé. While the directors clearly felt they deserved protection as
journalists under the reporter's privilege, there was enough uncertainty in
recent legal precedents to create cause for concern.

The doubts stem from a 2011 decision
in a case that pitted filmmaker Joe Berlinger against the Chevron Corporation.
Chevron sought access to all 600 hours of outtakes in Berlinger's documentary
"Crude," which centered on a lawsuit filed by Ecuadorans who accused Chevron of
contaminating their water supply in the Amazon.

The contentious case again Berlinger included revelations
that the idea for the film had been originally presented to the filmmaker by
the Ecuadoran plaintiffs' attorney, and that he had removed a potentially
incriminating scene after receiving a request to do so from the attorney. Berlinger
said that he maintained
editorial independence throughout the making of the film. But the language of the decision,
which ruled that Berlinger could not claim a reporter's privilege because the
documentary was not an act of "independent reporting," disturbed the
documentary film community.

Documentary filmmaker Michael Moore told the New York Times that the decision could
have much wider repercussions and worried that it might cause a "chilling
effect." Professor Jon M. Garon at the Law and Informatics Institute wrote in a
blog
that in light of the court's designation of Berlinger as an advocate rather
than a journalist, documentary filmmakers might need to rethink the practice of
receiving support from nonprofit groups with similar advocacy goals or
partnering in awareness campaigns. That technique, which has become a mainstay
of an industry that often needs to fight for funding, distribution, and viewers,
could imperil their ability to claim the independent journalist status
necessary for a reporter's privilege, Garon wrote.

At the heart of the "Central Park Five" case is the
filmmakers' clearly sympathetic portrayal of the five men. Classifying the directors
as "advocates" for the Central Park Five would be no stretch of the imagination,
and they have been vocal about their desire for a settlement favorable to their
subjects in the civil case. An advocacy angle is often intrinsic to documentary
film, where filmmakers choose stories that speak to them and spend much longer
periods of time with their subjects. Does this relationship or lack of
neutrality disqualify them for journalistic legal protection?

It does not, says Michael Donaldson, a lawyer specializing
in documentaries who filed an amicus brief in the Berlinger case. "The case law
is well established. One does not stop being a journalist just because he or
she advocates for a position that is consistent with his or her writing,"
Donaldson told CPJ. "That unfortunate, rather imprecise, reference in the
Berlinger decision is just that. It does not change the law."

Sarah Burns argued that "a lot of journalism is advocacy in
one way or another. ... There is no such thing as total objectivity. Opinion
columns are not objective." The more important distinction to make, she told
CPJ, was that "there was no financial or editorial relationship between us and
the subjects of our film." A side issue of whether Burns could be considered an
independent journalist because she had interned at the law firm that was then
defending the five men while in college was dismissed by the judge because the
material sought had not been collected during that time. The key point to
qualify for the reporter's privilege is whether the plaintiff's "intention at
the time the information in question is gathered was for the purpose of
disseminating the information to the public, " Judge Ellis wrote. Moreover,
"having a point of view," he concluded, does not make the newsgathering process
non-independent.

The outcome in the case has averted a "major setback," in
the words of Donaldson, though he advised documentary filmmakers to be "wary"
and that if "they want later to invoke a reporter's privilege they have to
conduct themselves like a journalist."

What seems clear is that this won't be the last case of a
documentary filmmaker invoking journalistic protection. Dwindling resources in
media companies and the increased appeal of documentaries thanks to Internet
distribution means journalists and filmmakers will likely increasingly look to
film as a way to tell--or break--a news story. More subpoenaing of filmmakers in civil and
criminal cases can't be far behind.

One sector of society that faces the harshest scrutiny in "The
Central Park Five," is the New York City press, whose hysterical coverage the
filmmakers portray as having amplified the drumroll for the convictions. Asked
if she finds it ironic to be claiming journalistic protection for a movie that
slams the media, Burns told CPJ that in the "Central Park Five" case, the press
failed to fulfill its purpose of "asking questions and holding our politicians
and society accountable." But the role of journalists is a "hugely important
one in our society," said Burns, who considers herself part of that community,
"so trying to do that role properly is noble."

Sara Rafsky is research associate in CPJ's Americas program. A freelance journalist in South America and Southeast Asia, she was awarded a 2008 Fulbright Grant to research photojournalism and the Colombian armed conflict.